A time for change

D. Russo, Inc. v. Township of Union. In this case, a strip club and an adult bookstore sued a New Jersey township, challenging the constitutionality of the town’s Sexually Oriented Business ordinance. But the town didn’t simply read the lawsuit and relent; it elected to fight. Eventually, though, the township amended the challenged SOB ordinances. Then the town argued that, because it amended the laws before the case reached a final judgment, the plaintiffs were not ‘prevailing” parties and thus not entitled to recover their attorney’s fees (under the fee-shifting provisions of New Jersey’s Civil Rights Act). The court disagreed:

The issue presented by this appeal is whether a party who brings an action under the Civil Rights Act that results in a change in defendant’s conduct may qualify as a “prevailing party” even though the action is dismissed as moot rather than being concluded by a judgment in plaintiff’s favor. We conclude that a party who brings an action that is shown to have been a “catalyst” for the cessation of conduct alleged to violate the Civil Rights Act may qualify as a prevailing party entitled to an award of attorney’s fees.

The appellate court sounded the policy behind its reasoning:

The denial of an award of attorney’s fees under such circumstances, as pointed out in Justice Ginsburg‘s dissent in Buckhannon, “allows a defendant to escape a statutory obligation to pay a plaintiff’s counsel fees, even though the suit’s merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint.”

Kudos the dedicated and sharp attorneys who pushed for, and got, this just result.